Court arguments today on the sale of the “Pork: The Other White Meat” trademark centered less around the merits of the sale and more around the technicalities of how the situation should proceed.
The arguments — held Thursday at the D.C. Circuit Court of Appeals — spent a good deal of time on the issue of whether or not a termination clause in a contract between the National Pork Board and the National Pork Producers Council is enforceable and whether a judge’s 2018 order to cease annual payments equates to the contract’s invalidation.
Circuit Judge Gregory Katsas also peppered lawyers on both sides of the argument about just what it was the court was supposed to consider on appeal, citing a litany of court decisions going as far back as 2016.
Those decisions led Humane Society of the United States attorney Matthew Penzer to conclude the agreement is no longer enforceable and therefore a termination payment should not be made. He argued the agreement was set to essentially be recreated every year due to government appropriations rules, so when a judge ruled the annual payments must cease in 2018, that left no contract to terminate.
Lewis Yelin, a Department of Justice attorney arguing for the Department of Agriculture — the government agency charged with administering checkoff programs — said that’s a misreading of the contract. Circuit Judge Neomi Rao also challenged Penzer’s interpretation, saying a district court ruling didn’t terminate the contract but halted the annual payments.
Arguing for the National Pork Producers Council, attorney Rebecca Bazan also challenged the standing and proof of economic injury for the producer involved in the case, Iowa farmer Harvey Dillenburg. She said Dillenburg was no longer claiming economic injury — an assertion Katsas said was “a little ambiguous.”
The case centers around NPPC’s sale of the trademark to the pork board for $60 million over 20 years, in $3-million-per-year payments. HSUS argued the sale was a way to funnel checkoff funds — which are statutorily prohibited from influencing the government — into NPPC’s lobbying efforts. In turn, those funds could then not be used for research and promotion efforts elsewhere. But Bazan argued that wasn’t proven, and a corresponding drop in hog prices attributed to lesser checkoff efforts did not occur.
“If (Dillenburg) had (economic harm), he should be able to say it,” she said.
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